State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 520395
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In the Matter of HOLLIE L.
GALLO,
Appellant,
v MEMORANDUM AND ORDER
JOSEPH GALLO,
Respondent.
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Calendar Date: February 16, 2016
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.
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Randolph V. Kruman, Cortland, for appellant.
Joseph Gallo, Endicott, respondent pro se.
Bridget A. O'Connor, Binghamton, attorney for the child.
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Devine, J.
Appeal from an order of the Family Court of Broome County
(Pines, J.), entered December 26, 2014, which partially dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of visitation.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a son (born in 2002).
The mother has lived in Virginia at all relevant times, while the
father resides with the child in Broome County. Family Court
issued an order in 2012 that awarded sole legal and physical
custody of the child to the father and visitation to the mother,
including two weeks of parenting time during the summer. The
mother commenced this proceeding in 2014 to modify the 2012
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order, seeking, among other things, two consecutive weeks of
summer visitation with the child at her residence in Virginia,
with half of the transportation expenses to be paid by the
father. Family Court granted the petition in part after a
hearing but, as is relevant here, only directed two non-
consecutive weeks of summer visitation to occur near the
residence of the child in Broome County. The mother now appeals.
We affirm. The mother initially asserts that Family Court
improperly advocated for the pro se father by asking questions to
guide his direct testimony, but she failed to preserve this issue
by lodging an objection to the questioning (see Matter of Keaghn
Y. [Heaven Z.], 84 AD3d 1478, 1480 [2011]; Matter of Borggreen v
Borggreen, 13 AD3d 756, 757 [2004]). Our review of the record
nevertheless gives no reason for concern, as Family Court
remained impartial and only questioned the father "to facilitate
the orderly and expeditious progress of the [hearing]" (People v
Collins, 171 AD2d 670, 671 [1991], lv denied 78 NY2d 964 [1991],
lv dismissed 79 NY2d 999 [1992]; accord Matter of Borggreen v
Borggreen, 13 AD3d at 757).
Turning to the merits, the breakdown in communication
between the parties and the ensuing failure of the mother to
avail herself of all the visitation afforded by the 2012 order
"constituted a sufficient change in circumstances to trigger an
inquiry into whether modification of the existing order was
required in order to ensure the child's continued best interests"
(Matter of Ryan v Lewis, 135 AD3d 1135, 1136 [2016]; see Matter
of Carr v Stebbins, 135 AD3d 1013, 1014 [2016]). The question
accordingly becomes what visitation schedule would be in the best
interests of the child, and Family Court's "findings in that
regard are entitled to great deference unless they lack a sound
and substantial basis in the record" (Matter of Daniel v
Pylinski, 61 AD3d 1291, 1292 [2009]; accord Matter of Wagner v
Wagner, 124 AD3d 1154, 1154 [2015]).
The father took no issue with most of the relief sought by
the mother, such as granting her access to the child's medical
and educational information and visitation on certain holidays.
With regard to actual visits, the child has not been to Virginia
since 2012, and the mother visited with the child in New York
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approximately six times between 2012 and 2014. The father
testified that he encouraged the mother to visit with the child
in New York and, indeed, he hosted the mother for several days on
a recent visit.1 Visitation at the mother's residence in
Virginia was a bridge too far for the father, however, as he was
unwilling to share in the transportation expenses for those
visits and was concerned by the mother's out-of-court statements
to him regarding her present living situation. Family Court gave
no weight to the father's unsubstantiated assertions about the
mother's lifestyle, but was rightly concerned by the minimal
details provided as to the environment the child would encounter
were he to stay with the mother in Virginia. The attorney for
the child further reported that the child was uncomfortable with
the idea of visiting the mother in Virginia and would prefer that
visitation occurred in New York. In sum, given the paucity of
evidence to show that extended visitation in Virginia would be in
the child's best interests, and noting the child's disinterest in
engaging in that visitation, a sound and substantial basis in the
record exists for requiring that the two weeks of visitation
occur in Broome County at this juncture (see Matter of Susan LL.
v Victor LL., 88 AD3d 1116, 1119 [2011]; cf. Szemansco v
Szemansco, 296 AD2d 686, 687 [2002]).
The mother lastly faults Family Court for failing to
conduct a Lincoln hearing, but the issue is unpreserved given the
absence of any request that Family Court do so (see Matter of
Colleen GG. v Richard HH., 135 AD3d 1005, 1009 [2016]). In any
event, the child relayed his wishes through his attorney and had
no firsthand knowledge of the mother's current living situation,
and Family Court did not abuse its discretion in not conducting
an unnecessary Lincoln hearing (see Matter of Battin v Battin,
130 AD3d 1265, 1266 [2015]; cf. Matter of Jessica B. v Robert B.,
104 AD3d 1077, 1078 [2013]).
1
The mother testified that travel and lodging expenses
were "costly" when she exercised her visitation rights in New
York. It is unclear what lodging expenses she would incur if she
stayed with the father, however, and she was admittedly capable
of covering her own travel expenses.
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McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.
ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court